Public Comment

Commentary: Measure J Language Deceptive

By Gale Garcia
Tuesday November 21, 2006

In his Nov. 14 commentary, “Why Measure J Lost,” Alan Tobey left out the elephant in the room. The “City Attorney’s Impartial Analysis of Measure J” in the county’s voter pamphlet was written by Zach Cowan, the author of the revisions designed to gut our Landmarks Preservation Ordinance, which Measure J would have continued. Is it surprising that the ballot language turned out to be hopelessly confusing to voters? 

The ballot language was so biased that Measure J supporters took the city to Superior Court, petitioning by writ of mandate for a more impartial analysis in the voter pamphlet. We could not afford a lawyer—but the city could—it hired a San Francisco law firm, at the expense of the taxpayers of Berkeley, to oppose a group of citizens seeking honesty from our legal department.  

The 21-page brief of the city’s hired gun was attached to hundreds of pages of exhibits. The brief argued, regarding the petitioners, “…Section 9295 then requires them to show, again by clear and convincing evidence, that the materials were [“false and misleading.”]” But this statement is untrue. The language of California Election Code Section 9295 actually reads, “false, misleading or inconsistent….”, a far lower burden of proof for the citizens to have achieved. 

Did the city’s hired attorney simply make a mistake, and then highlight the mistake with italics and bold print? Or was he deliberately trying to mislead the judge? If the latter, his behavior was a perfect mirror of the party who hired him.  

The judge decided that the ballot argument was not misleading enough to order the language to be rewritten. Therefore, readers of the voter pamphlet, including all of the endorsing “mainstream” political groups, received inaccurate information about Measure J from a source that was supposed to be impartial, but was quite the opposite.  

One misleading claim was about possible liability due to conflicts with state permit processing timelines. Measure J was not in conflict with any state law. But threats about the Permit Streamlining Act are often used to give developers favors. I do not believe that any developer has ever sued the city. Outraged citizens, on the other hand, sue the city all the time, frequently over development policies. Sadly, they usually lose even when their legal case is good, because judges are loathe to rule against charter cities. 

Given that we had to fight a pack of legal lies at the outset, and a Chamber of Commerce PAC of lies at the finish line, I think we did very well, especially since we were up against a well-oiled political machine, for which no lie is too egregious. 

I came away from the campaign convinced that very few people, excepting members of the Political Machine, those whose family income derives from development (most of Livable Berkeley), and their staunch advocate, Mr. Tobey, really like the kind of massive projects that have been blighting Berkeley. There will be interesting times ahead, now that developers are trying to unload “fully permitted” land as “opportunity sites”, while recently completed projects appear forlornly under-occupied. 

Perhaps the people of Berkeley should start thinking about amending the City Charter to return to us, who are paying for it all, some of the power that the City Council-attorney-developer complex has been using to pillage the town. 


Gale Garcia is a Berkeley resident.